L E A S E
THIS LEASE, made and entered into as of the 23rd day of June, 1993, by and
between SOUTH CAROLINA REAL ESTATE DEVELOPMENT COMPANY, INC. (referred to
hereinafter as "Landlord"), and HOSOKAWA MICRON INTERNATIONAL, INC. (referred to
hereinafter as "Tenant").
W I T N E S S E T H :
WHEREAS, the Landlord is or expects to become the owner of certain
property hereinafter described; and,
WHEREAS, the Landlord has agreed to construct a building and other
improvements on said property and to lease such improvements and property to the
Tenant subject to certain terms and conditions; and,
WHEREAS, the Tenant desires to lease the said improvements and property
from the Landlord, and to that end and in consideration of the premises, the
covenants, terms and conditions to be performed as set forth hereinafter, the
parties have agreed and do agree as follows:
1. PREMISES. Subject to the terms and conditions set forth hereinafter,
the Landlord leases hereby to the Tenant, and the Tenant rents hereby from the
Landlord that land containing
approximately fifteen (15) acres (the "Land") which is situate on U. S. Highway
25 near its intersection with South Carolina State Road 19-429 in Edgefield
County, South Carolina, being more particularly described on the attached
Exhibit "A" and the improvement to be constructed on the land (the Land and
improvements hereinafter referred to as the "Premises").
2. TERM OF LEASE.
A. The initial term of this Lease shall be for a period of
fifteen (15) years to commence on the 1st day of either the month following the
fourteenth (14th) day after substantial completion of construction of the
Building (as hereinafter defined) or the month in which Tenant opens for
business in the entire Building, whichever first occurs. Provided, however, if
the earlier of the 14th day following substantial completion or Tenant's opening
takes place on the first day of a month the initial term shall commence on such
date. If the Tenant opens for business prior to the actual commencement of the
initial term, the Tenant shall pay pro rata rent for the number of days from and
including the earlier of the date the Tenant opened for business or the 14th day
after substantial completion to the commencement date of the initial term. When
the date of commencement of the initial term is determined, Landlord shall
provide Tenant a written notice thereof.
B. Provided Tenant is not then in default, Tenant shall have the
right to renew this Lease by giving Landlord written notice to renew 180 days
prior to the expiration of the initial term and any renewal term for an
additional period of five (5) years, on the same terms and conditions as apply
to the initial term, except that annual rent during the first renewal term shall
be 110% of the annual rent in effect during the last year of the initial term as
provided for in Section 4(B), and annual rent for each succeeding renewal term
shall be 105% of the annual rent
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in effect for the last year of the preceding renewal term. The word "Term" in
this Lease shall apply to the initial term and any renewal term.
3. CONSTRUCTION OF PREMISES.
A. As used herein the following terms shall have the following
meanings:
(i) Plans: Drawing No. M37 (Perspective, without company
name on building) dated 1/20/93, Drawing No.M37Al, Sheet No. Al (Floor Plan)
dated 1/15/93, Drawing No. M37A2, Sheet No. A2 (Exterior Elevations), dated
1/15/93, Drawing No. M37A3, Sheet No. A3, dated 1/15/93 (Enlarged Xxxxxx Xxxxx
Xxxx) xxx Xxxxxxx Xx. X00X0 dated 1/12/93, all drawings prepared by Carlisle
Associates, attached hereto as Exhibit "B", Exhibit "C" (which consists of
Exhibit "C-l", Exhibit "C-2", Exhibit "C-3" and Exhibit "C-4"), respectively,
together with such other plans and specifications as shall be reasonably
developed and prepared by Landlord and approved by Tenant, consistent with the
Exhibits B and C attached to this Lease.
(ii) Site Plan: Drawing No. M37C101, Sheet No. C101 (Site
Plan) dated 1/29/93, prepared by Carlisle Associates, attached hereto as Exhibit
"D".
(iii) General Specifications dated January 15, 1993 prepared
by Xxxxx & Xxxxxxx, Inc., containing a title page, a table of contents page and
thirty-two (32) specification pages, attached hereto as Exhibit "E", as modified
by "Schedule of Alternates and Clarifications" containing three (3) pages
attached hereto as Exhibit "F". The parties agree and acknowledge that the
alternates in Exhibit "F" numbered 3, 9, 10 and 15 were not elected by Tenant
and are not applicable; that of the remaining items, those additions to cost or
deductions from cost which are designated "Subject to Provisions of 3B" shall
cause an adjustment of rent in accordance with
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Section 3(B) of this Lease; and that those alternates which are designated
"Included in Base Rates" shall be accomplished but shall not cause an adjustment
in rent under Section 3(B).
B. The Landlord, at its expense, shall construct a building of
approximately one hundred one thousand (101,000) gross square feet (the
"Building") and other improvements on the Premises in accordance with the Plans,
Site Plan and General Specifications. Final approval of the Plans, Site Plan and
General Specifications shall be given by Tenant not later than the twentieth day
after final execution of this Lease, or Landlord will be entitled to one day of
extension of the delivery date specified below for each day of delay in said
approval after said twentieth day. Landlord will submit final construction plans
and specifications to tenant for approval upon receipt of same from the
Landlord's project architect/engineer. Tenant shall have five (5) working days
from receipt of said plans and specifications to approve them or to notify
Landlord of any objections thereto, or Landlord will be entitles to one day of
extension of the said delivery dates for each day after said fifth day. Landlord
and Tenant contemplate that governmental entities will provide funds, namely,
Community Development Block Grant Funds and South Carolina Coordinating Council
for Economic Development Funds (such funds hereinafter referred to collectively
as "Development Funds") to pay the cost of certain off-site infrastructure
improvements and facilities and portions of the work which is part of the
project to be constructed by Landlord. Any material changes or omissions to the
Plans shall be made by written change order duly signed by Landlord and Tenant.
Any such written change shall specify any extension of completion times and
delivery date, as determined by Landlord, as a result of any such changes. If
any change requested by Tenant causes Landlord's cost of construction to
increase, at Tenant's option, Tenant may promptly pay for such increase within
ten days after
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notice of the amount from Landlord, or the amount of annual rent set forth in
Sections 4A (prorata), B, C and D below shall be increased by an amount equal to
the product of (x) the cost of the change divided by 1,000 times (y) $0.0012
times (z) 101,000 (sq. ft.). If any change requested by Tenant causes Landlord's
cost of construction to decrease or if a portion of Landlord's construction work
is paid for with Development Funds, whether by payment to Landlord or by direct
payment to the entity performing the work, the amount of annual rent set forth
in Sections 4A (prorata), B, C and D below shall be decreased by an amount equal
to the product of (x) the cost of the change or the amount of cost savings
resulting to Landlord from the use of Development Funds divided by 1,000 times
(y) $0.0010 times (z) 101,000 (sq. ft.). Construction shall be performed in a
workmanlike manner in accordance with the Plans in all material respects and in
accordance with standard trade practices and all applicable laws, ordinances and
regulations in all respects.
C. This Lease and Landlord and Tenant's obligations hereunder are
contingent upon the following matters being satisfied, both of which shall be
conditions precedent to Landlord's obligation to commence construction of any
improvements:
(i) Landlord being able to obtain title to the Land on terms
satisfactory to Landlord; and
(ii) Commitments reasonably satisfactory to Landlord having
been obtained by Landlord that sewer, water, electricity and natural gas will be
available to the Land in such time as will enable Landlord to meet its delivery
dates hereunder and in sufficient capacity for the uses intended by Tenant.
Tenant acknowledges that said services are to be provided by parties other than
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Landlord which are beyond Landlord's control.
If Landlord has not been able to satisfy the said matters by the earlier of the
date on which Landlord is to close the purchase of the Land or September 1,
1993, either Landlord or Tenant shall have the right to cancel this Lease, and
the security deposit paid at the execution hereof shall be refunded to Tenant.
D. The Landlord shall, by the end of the twenty-first (21st) week
after all permits required for construction of the Premises have been obtained,
have the manufacturing portion of the Building substantially completed to the
extent that Tenant can begin to move its fixtures and equipment into that
portion of the Building. Tenant agrees that it will not interfere with the work
of Landlord's contractors and subcontractors and will hold Landlord harmless
from any cost incurred by Landlord as a result of such interference. Landlord
shall have no responsibility or liability for any loss or damage to the property
of Tenant during the period of partial occupancy before the Building is
substantially complete and possession is delivered to Tenant. The Landlord shall
have the Premises substantially completed for delivery to the Tenant on or
before the end of the twenty-fourth (24th) week after all permits required for
construction of the Premises have been obtained. The time for partial occupancy
and for substantial completion shall be reasonably extended for delays caused by
acts of God (including without limitation inclement weather), strikes, casualty
or other causes beyond Landlord's control or changes requested by Tenant.
E. Landlord warrants that as of the date of delivery of
possession of the Premises to Tenant, to the best of Landlord's knowledge, there
is not present on the Premises any hazardous substance as defined in applicable
federal, state or local laws and regulations, and that the Premises are free of
asbestos.
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4. RENT. The Tenant agrees to pay to the Landlord as annual rental for
the Premises the following amounts (subject to the adjustments, if any, provided
for in Section 3 [B] above) for the following time periods, one-twelfth (1/12)
of said annual rental to be paid monthly, in advance, on the first day of each
month during the applicable period; provided, however, that the first full
month's rent shall be paid in advance at the execution hereof.
A. $899.32 per day for the number of days Tenant has taken
possession of the Premises or has opened for business prior to commencement of
the Lease Term. If Tenant commences operations in the Premises during the period
of partial occupancy referred to in Section 3(D) above, the Rent due under this
subparagraph shall be prorated in the same proportion as the amount of space
occupied bears to the gross area of the Building.
B. Years One through Fifteen: $328,250.00 per annum, or
$27,354.17 per month.
C. If any installment of rent or any other sum due to Landlord
from Tenant hereunder is not paid within ten (10) days of the date due, a late
charge equal to five percent (5%) of the amount owed shall be due in addition to
and payable together with such amount, and shall be deemed additional rent
hereunder.
5. USE OF PREMISES.
A. The Tenant agrees that only lawful business shall be operated
by it on the Premises, and said business will not be operated in such a manner
as to constitute a nuisance or a hazard, and that in connection with the
operation of the business the Tenant will observe and comply with all applicable
laws, ordinances, orders and regulations prescribed by lawful authority having
jurisdiction over the business operated in the Premises.
B. Under no circumstances shall Tenant bring, store, keep or use
(nor permit any
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of the foregoing) into, on or within the Premises any substance or material
which is classified or deemed to be hazardous under any federal law or
regulation or any law or regulation of the State of South Carolina, without
first obtaining Landlord's written permission for same. In the event Landlord
gives its consent (which may include the imposition of conditions for Landlord's
benefit), any such substance shall be transported, handled, stored, used and
disposed of strictly in accordance with applicable laws and regulations.
Landlord shall have the absolute right to revoke any permission if Tenant
breaches the foregoing covenant. Tenant shall be absolutely liable for all costs
and expenses of any kind whatsoever resulting from the presence of hazardous
materials on the Premises or the transportation of them to or from the Premises.
Tenant shall defend, indemnify and hold Landlord harmless from all loss, cost,
expense or liability of any kind whatsoever resulting from Tenant's
transportation, storage, use or disposal of such substances on the Premises.
This Lease may not be cancelled or terminated by Tenant notwithstanding the
termination or expiration of the term if at the time for termination or
expiration of the term there remain on the Premises any such hazardous
substances, and rent shall accrue and be payable at one and one-half (1.5) times
the rate otherwise in effect at the end of the term until all such substances
have been removed from the Premises.
6. REPAIRS AND ALTERATIONS. The Tenant agrees, at its sole cost and
expense, to maintain, repair and replace all of the improvements including, but
not limited to, all mechanical systems, plate glass, the parking and service
areas and landscaped areas located on the Premises in a good state of repair
(including replacement when necessary) and to keep the Premises in a clean, neat
and orderly condition, subject to normal wear and tear. Landlord shall and does
hereby assign any assignable warranties it may have with regard to the portions
of the
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Premises, or any component thereof, for which Tenant is responsible. Landlord
shall maintain the roof and structural integrity of the Building. Landlord
warrants that the general contract for construction of the Building shall
contain a warranty against defects in materials and workmanship for a period of
one (1) year after substantial completion.
The Tenant, at its sole cost and expense and only with Landlord's prior
written consent, may make minor alterations or renovations to the existing
improvements. Tenant shall hold Landlord harmless from any claim, losses,
damages or liens arising as a result of such alterations or renovations.
7. EXPANSION OF BUILDING. Landlord warrants to Tenant that under
applicable laws and zoning regulations, if any, in effect as of the date of
execution of this Lease, the Land contains sufficient area for an expansion of
the Building by up to twenty thousand (20,000) gross square feet of new area. At
any time during the first ten (10) years of the term, Tenant shall have the
right to have the Building expanded by the addition of up to twenty thousand
(20,000) gross square feet of new area. Tenant may exercise this right by giving
Landlord written notice thereof, together with a detailed specification of
Tenant's requirements for such expansion. Within sixty (60) days of receipt of
such notice, Landlord shall provide to Tenant a written proposal for the
expansion, including delivery date, rent for the new area and combined rent for
the entire Premises as expanded, revised prices for the purchase option set
forth in Section 29 hereof and a time limit for acceptance or rejection of the
proposal. Tenant shall have the option to accept Landlord's proposal or to have
the expansion constructed at its own expense, subject to Landlord's approval of
the plans and specifications for the expansion and the contractor to perform the
work, which approvals shall not be unreasonably withheld or delayed by Landlord.
After the tenth year
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of the term, Tenant shall not have the right to expand the Building without
Landlord's prior consent unless either (i) Tenant exercises its option to
purchase the Premises or (ii) Landlord and Tenant agree on an extension of the
Lease term (and the rent therefor) such that after the construction of the
expansion, there shall remain at least ten (10) years in the term as extended.
Any expansion space shall be subject to all of the terms and conditions of this
Lease.
8. UTILITIES; REGIME FEES. The Tenant shall be responsible for the
costs of electricity, lights, water, sewer, heat, janitor service or any other
utility or service consumed including any initial hookups or taps in connection
with the occupancy of the Premises by the Tenant. If the Premises are part of an
integrated park development and the Land is subject to annual assessment by the
park developer or an association or regime of owners of parcels within the park
of fees for the costs of maintaining common areas, roadways and facilities,
utilities serving common areas, ad valorem taxes on the common areas and similar
costs, Tenant shall reimburse Landlord for the amount of such fees assessed and
paid against the Land.
9. SIGNS. The Tenant shall have the right to erect and maintain such
sign or signs on the Premises advertising Tenant's name, affiliation and uses
permitted by this Lease as may be permitted by applicable law, and subject to
Landlord's prior consent which shall not be unreasonably withheld.
10. TAXES. The Tenant shall pay during the Lease Term (when due and
before any past due or penalty date) all ad valorem taxes assessed against the
Premises by the appropriate governmental authorities and also all ad valorem
taxes levied against any stock or merchandise, furniture, furnishings, equipment
and other property located in, on or upon the Premises. Landlord shall forward
the tax xxxx for the Premises to Tenant promptly upon receipt of same and in no
case
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later than the fifteenth day before the last day the taxes may be paid without
penalty, failing which Tenant shall be liable only for the amount of the taxes
due and not for any penalties. Landlord shall also promptly forward to Tenant a
copy of any notice of reappraisal or reassessment of the Premises. Tenant shall
have the right to appeal or contest the amount of any appraisal, assessment or
property tax xxxx as provided by law, in its own name or in Landlord's name, as
appropriate, and Landlord shall, at no cost to itself, cooperate in such appeal
or contest.
11. LIABILITY INSURANCE. The Tenant shall provide and keep in force at
its own expense during the term of this Lease public liability insurance for the
protection of Landlord and Tenant and property damage insurance coverage with
respect to the contents of the Premises. The insurance coverage to be provided
by Tenant shall contain limits of not less than $1,000,000.00 combined single
limit.
12. FIRE AND EXTENDED COVERAGE INSURANCE. The Landlord shall, at
Tenant's cost and expense, procure and keep in effect a policy (which term shall
include coverage under any blanket policy of Landlord) of fire and extended
coverage insurance in an amount equal to the insurable replacement value of the
building and Landlord's other improvements upon and constituting a part of the
Premises. Said policy shall provide coverage for Landlord's benefit for six (6)
months of loss of rents. Such policy shall be issued in the name of the Landlord
and shall name Landlord's Mortgagee(s) as a loss payee. The Tenant shall within
ten (10) days following receipt by Tenant of written demand reimburse Landlord
for the cost of all insurance carried pursuant hereto. Tenant shall have the
right to furnish such insurance for Landlord's benefit if Tenant can obtain the
same coverage and benefits at less cost than Landlord, provided such insurance
shall be issued by a company or companies reasonably acceptable to Landlord.
Tenant
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shall be responsible to keep insured all contents of the Building.
13. DAMAGE OR DESTRUCTION BY FIRE. ETC. If the Building is damaged or
destroyed by fire, flood, tornado, or by the elements, or through any casualty,
or otherwise, after the commencement of the term of this Lease, the Lease shall
continue in full force and effect, and Landlord at its expense shall promptly
restore, repair or rebuild same, to the same condition as existed immediately
prior to such damage or destruction. Should all or a portion of the Premises be
made untenantable by such damage, rent and additional rent, if any, shall be
adjusted proportionately from the date of such damage or destruction until ten
(10) days after Landlord has repaired or restored said building in the manner
and in the condition provided in this paragraph. Notwithstanding the foregoing,
if Landlord has not repaired and restored the Building to its condition as
existed immediately prior to the damage within one hundred eighty (180) days
after the date of the casualty, Tenant may by written notice terminate this
Lease.
In the event that the Premises shall be damaged, in whole or in part,
within the last twenty-four (24) months of the Lease Term, or any Renewal Term,
or the last twelve (12) months of the last Renewal Term, Landlord shall have the
option, exercisable within thirty (30) days following such damage of terminating
this Lease, effective the date of giving notice thereof, provided, however, that
if at the time of such damage Tenant has the right to exercise a renewal option
which will extend the term of this Lease to a date no earlier than five (5)
years following such damage, and if Tenant exercises such option by notice to
Landlord within thirty (30) days following such damage, Landlord shall have no
right to terminate under the provisions of this subparagraph, and any previously
attempted exercise by Landlord of such right shall be ineffective.
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14. INDEMNIFICATION. The Tenant agrees hereby to indemnify and save the
Landlord harmless from any and all actions, demands, liabilities, claims, losses
or litigation, including court costs and reasonable attorneys fees arising out
of or connected with the Tenant's occupancy or use of the Premises and/or which
results from any alleged act or negligence of the Tenant, except for damage
caused by the negligence of Landlord or its employees, agents or contractors.
15. DEFAULT. As used in this Lease, the term "event of default" shall
mean any one of the following:
A. The failure of the Tenant to make any payment of rent by the
tenth (10th) day after the date on which the same becomes due and payable;
B. The failure of the Tenant to fulfill any other duty or
obligation imposed on the Tenant by this Lease;
C. The appointment of a receiver or the entry of an order
declaring the Tenant bankrupt or the assignment by the Tenant for the benefit of
creditors or the participation by the Tenant in any other insolvency
proceedings;
D. The taking of the leasehold interest of the Tenant hereunder
pursuant to an execution on a judgment.
Upon the happening of any "event of default", the Landlord may at its
option accelerate payments due hereunder and terminate this Lease and expel the
Tenant and recover reasonable legal fees and costs therefrom without prejudice
to any other remedy; provided, however, that before the exercise of such option
in the event of default, in the case of failure by the Tenant in the payment of
rent or the payment of taxes or insurance costs or any other sums as required by
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this Lease ("Monetary Default"), the Landlord shall first have given written
notice of such event of default to Tenant, which thereafter shall have five (5)
days within which to remedy or correct such monetary default, including the
payment of any late fees or other charges assessed by the Lender of Landlord,
and in the case of failure by Tenant to perform any other condition imposed
herein upon the Tenant, the Landlord shall have first given written notice of
such event of default to the Tenant, which thereafter shall have thirty (30)
days (as to any event of default) within which to remedy or correct such
default; provided, that if such event of nonmonetary default cannot reasonably
be cured within said thirty (30) day period, the Tenant shall not be deemed in
default hereunder if cure is commenced within said period and diligently pursued
thereafter. In case of acceleration of rent due to default by Tenant and
termination of this Lease by Landlord as aforesaid, if Tenant promptly (in any
event within sixty {60} days of default and the applicable cure period) vacates
and surrenders possession of the Premises to Landlord and consents to the entry
of judgment against Tenant so providing, Tenant shall have the right to pay as
liquidated damages an amount equal to (x) the accelerated rent minus (y) the
amount of funds collected by Landlord from the Letter of Credit described in
Section 32 hereinbelow (net of Landlord's costs of collection, as stated in
Section 32), if any, said liquidated damage amount to be payable in equal
monthly installments (the "Post-acceleration Payments") over the period
remaining on the Term at the time of the default. As long as Tenant has not
failed to make timely any Post-acceleration Payment as aforesaid, if Landlord
relets the Premises, Tenant shall be entitled to a credit against future
Post-acceleration Payments equal to the amount of rent received under the new
lease, reduced by the costs to Landlord of reletting, including, without
limitation, commissions, attorneys fees and cost of alterations or improvements
to the Premises to make them
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ready for the new tenant. If Tenant fails to vacate and surrender the Premises
and consent to the entry of judgment as aforesaid, the accelerated rent shall be
immediately due and payable, and Landlord may pursue such remedies as are
available at law or in equity. Notwithstanding anything herein to the contrary
the Landlord shall have no obligation to give notice of Monetary Default more
than six (6) times in any twelve (12) month period.
16. IDENTITY OF INTEREST. The execution of this Lease or the performance
of any act pursuant to the provisions hereof shall not be deemed or construed to
have the effect of creating between Landlord and Tenant the relationship of
principal and agent or of a partnership or of a joint venture and the
relationship between them shall be and remain only that of Landlord and Tenant.
17. NOTICES AND REPORTS. Any notice, report, statement, approval,
consent, designation, demand or request to be given and any option or election
to be exercised by a party under the provisions of this Lease shall be effective
only when made in writing and delivered, including telecopy or delivery by
Federal Express or other recognized overnight courier, or mailed by registered
or certified mail with postage prepaid, (notice by mail shall be deemed given on
the second day after mailing) to the other party at the address (or telecopy
number) given below:
LANDLORD: South Carolina Real Estate Development Company, Inc.
Xxxx Xxxxxx Xxx 000
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Vice President, Commercial
Telecopier: (000) 000-0000
TENANT: Hosokawa Micron International, Inc.
00
x/x Xxxxxxx-Xxxxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Attn: President
Telecopier: (000) 000-0000
provided however, that either party may designate a different address from time
to time by giving to the other party notice in writing of the change.
18. MEMORANDUM OF LEASE. Landlord and Tenant agree, upon the request of
the other, to execute a memorandum of this Lease suitable for recording under
the applicable laws of the recording authority where the Premises are located.
19. ENTRY OF LANDLORD. Landlord may enter the premises during business
hours after reasonable notice (which need not be in writing):
A. to inspect or protect the Premises;
B. to exhibit the Premise to any prospective purchaser or
mortgagee;
C. to place a "for sale" or "for rent" sign on the Premises
during the last 180 days of this Lease or following an event of default.
No authorized entry by Landlord shall constitute an eviction of Tenant or
a deprivation of its rights or alter the obligation of the Landlord or create
any right in the Landlord averse to the interest of the Tenant hereunder.
20. OWNERSHIP OF IMPROVEMENTS AT LEASE EXPIRATION. At the
expiration of the Lease, the improvements on the Premises shall be and remain
the sole property of the Landlord. Provided that Tenant is not in default
hereunder, any trade fixtures, items of personalty and signs purchased and
installed (at Tenant's expense) and used by Tenant in the operation of its
business on the Premises shall remain the Tenant's sole property and Tenant
shall
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have the right to remove the same provided any damages in removal are repaired
by the Tenant. Provided, further, that if Tenant shall fail to remove same
within thirty (30) days after the expiration of the term, the same shall be
deemed abandoned by Tenant, and Landlord shall have the right to remove and
dispose of same without liability to Tenant and to recover from Tenant
Landlord's costs of such removal and disposition.
21. QUIET ENJOYMENT. The Landlord warrants that the Tenant, upon
observing and complying with the terms, covenants and conditions of this Lease
shall enjoy the use and occupancy of the Premises during the Lease Term without
any hindrance or interference.
22. ENTIRE AGREEMENT. This Lease contains all of the understandings by
and between the parties hereto relative to the leasing of the Premises and all
prior or contemporaneous agreements relative thereto have been merged herein or
are voided by this instrument, which may be amended, modified, altered, changed,
revoked or rescinded in whole or in part only by an instrument in writing signed
by each of the parties hereto.
23. ASSIGNMENT AND SUBLETTING. The Tenant may not assign this Lease or
sublet the Premises or any portion thereof or otherwise transfer any right or
interest hereunder without the prior written consent of the Landlord, which
shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant may
assign this Lease to an entity which is wholly owned or controlled by Tenant
without Landlord's consent, but such assignment shall not relieve or release
Tenant from any obligation or liability hereunder, and Landlord shall continue
to look to Tenant for the performance of all covenants and obligations of Tenant
hereunder.
24. EMINENT DOMAIN. If any person, corporation or authority, municipal,
public, private or otherwise, shall at any time during the term of this Lease or
any extension or renewal
17
hereof, lawfully condemn and acquire title to the Premises, or to any portion
thereof in or by condemnation or other similar proceeding, pursuant to any law,
general, special or otherwise, the respective rights of Landlord and Tenant
shall be as hereinafter provided.
A. Landlord shall be entitled to, and shall receive any and all
awards or payments attributable to taking of the title to the Premises,
including an easement or right of way therein, and Tenant shall and does hereby
assign and transfer to Landlord such award or payment as may be made therefor.
B. Tenant shall be entitled to, and shall receive, any and all
awards or payments attributable to its leasehold improvements and any other
award made specifically to Tenant for loss of business, moving expenses or other
purposes, free and clear of every claim of every kind whatsoever by or on the
part of Landlord as herein provided.
C. The rental herein reserved for the term hereof then in effect
shall be reduced by the same percentage as the building area taken (measured to
the nearest whole square foot) bears to the area of the building prior to the
taking (measured to the nearest whole square foot). If the taking is with regard
to a portion of the land, the Landlord recognizes that a reduction in rent is
warranted if said taking impacts the intended use or expansion of the
improvement. The Landlord and Tenant agree that under such circumstances, they
will attempt at such time to develop a reduction for the balance of the term.
Failing agreement of the parties, the parties agree to submit this to
arbitration.
D. The term "taken" or "taking" shall include the actual physical
taking of the Land and/or Building in whole or in part, including those
instances where the condemnor acquires fee simple title to the area condemned,
as well as those instances where the condemnor acquires an easement, right of
way or estate of less than a fee simple title to the area condemned, provided
that the taking of any such easement, right of way or estate less than the fee
has the effect of excluding the Tenant from that portion of the property or
depriving Tenant of the beneficial use and enjoyment of such condemned area for
any period. The terms "taken" and "taking" shall not include those instances,
and Tenant shall not be entitled to any reduction in rentals or price, where any
easement, right of way, or other estate acquired by the condemnor does not
exclude Tenant from the area condemned or does not deprive Tenant of the
beneficial use thereof.
E. If substantially all of the Premises are taken, then this
Lease shall terminate as of the day of taking without further obligation for
payment of rent.
F. Anything herein contained to the contrary notwithstanding, any
award for any taking which affects only Landlord's interest under this Lease and
does not affect Tenant's interest under the Lease shall be payable solely to the
Landlord, and any award for any taking of Tenant's interest under this Lease
which does not effect Landlord's interest under this Lease shall be payable to
Tenant. In all cases where the award is attributable to a taking of interest of
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Landlord and Tenant and the condemning authority does not make separate awards,
the award shall be paid to landlord who shall deposit the same in a special
account in the name of Landlord and be kept separate and distinct from other
funds of Landlord pending distribution of the award between Landlord and Tenant
by agreement or pursuant to arbitration.
G. The valuation of Landlord's and Tenant's interest and the
apportionment of any award shall be determined by agreement, or if they are
unable to agree, the value shall be determined by arbitration as hereinafter
provided.
H. In the event of a partial taking of any building structure
erected on the Premises or parking area the Landlord shall:
(a) In the event the remaining portion of such structure
contains sufficient area to be put to its intended use as of the date of the
partial taking, Landlord shall rebuild and repair the structure in a good and
workmanlike manner. Despite the fact the remaining portion of any such structure
contains a sufficient area to be usable, if in the opinion of a competent
engineer the remaining portion of the structure has been structurally damaged to
the extent it would be impossible to repair the same in a good and workmanlike
manner or not economically feasible to make such repairs, then Landlord may
terminate this Lease as of the day of taking.
(b) In the event the remaining portion of any such structure
does not contain sufficient area to be put to its intended use, then this Lease
shall be terminated as of the day of taking.
I. ARBITRATION. Arbitration as provided herein shall be the
arbitration of three persons who shall be licensed realtors, to whom such
arbitration shall be referred, one of such persons to be nominated by the
Landlord, one to be nominated by Tenant and the third to be appointed by writing
under the hands of the two so nominated before the reference is proceeded with,
and the decision of any two of the arbitrators shall be binding. If either the
Landlord or Tenant shall refuse or neglect to appoint an arbitrator within ten
(10) days after the other shall have appointed an arbitrator and served written
notice upon the other requiring him to appoint an arbitrator, then upon such
failure, the party making the request and having himself appointed an arbitrator
may appoint another arbitrator to act on behalf of the party so failing to
appoint, and the arbitrator so appointed may proceed and act in all respects as
if appointed by the party so failing to make such appointment. The costs of the
reference of the arbitrator shall be borne by the parties equally.
25. WAIVER OF SUBROGATION. Landlord and Tenant hereby waive all rights
of recovery and causes of action which either has or may have or which may arise
hereafter against the other, whether caused by negligence, intentional
misconduct or otherwise, for any
19
damage to Premises, property or business cause by any of the perils covered by
fire and extended coverage building and contents and business interruption
insurance, or for which either party may be reimbursed as a result of insurance
coverage affecting any loss suffered by it, provided, however, that the
foregoing waivers shall apply only to the extent of any recovery made by the
parties hereto under any policy of insurance now or hereafter issued, and
further provided that the foregoing waivers do not invalidate any policy of
insurance of the parties hereto, now or hereafter issued, it being stipulated by
the parties hereto that the waivers shall not apply in any case in which the
application thereof would result in the invalidation of any such policy of
insurance; and further provided that it is the intention of the parties that no
third party shall benefit in any way from such actions of the Landlord or the
Tenant.
26. SUBORDINATION AND ESTOPPEL AGREEMENTS. The Tenant shall from time to
time provide landlord or any mortgagee of Landlord with an estoppel letter, in a
form reasonably requested by Landlord, confirming the status of the Lease,
including whether or not any defaults exist. The Tenant shall and does hereby,
automatically and without the necessity of execution of any further document*,*
acknowledge that this lease is subordinate to any mortgage(s) placed on the
Premises by Landlord provided that the mortgagee shall acknowledge Tenant's
right to enjoy the undisturbed use of the Premises so long as Tenant is not in
default. The Tenant shall execute such documents as may be reasonably required
from time to time in accordance herewith.
27. HOLDING OVER. If Tenant holds over after termination of the initial
term and any renewals thereof this Lease, the tenancy thereafter shall be from
month to month subject to all terms, condition, and covenants of this Lease
provided that the monthly rent during such
20
holdover shall be one hundred fifty percent (150%) of the monthly rent in effect
for the last month of the Term.
28. BINDING EFFECT. This Lease shall be binding upon and shall inure to
the benefit of the parties hereto, their respective heirs, successors and
assigns.
29. PURCHASE OPTION. Landlord hereby grants to Tenant the right and
option to purchase the Premises at the end of each five (5) year period ("Fifth
Anniversary") after the commencement date of the term hereof. The purchase price
shall be subject to downward or upward adjustment for net decreases or net
increases, respectively, in Landlord's cost to develop the Premises due to
application of Development Funds or cost changes due to changes in the Plans
requested by Tenant. If there is a net decrease in said cost, the purchase price
at each Fifth Anniversary shall be as set forth in the following schedule. If
there is a net increase in said cost, the purchase price will be adjusted upward
by the same percentage as results in the case of a corresponding amount of net
decrease. The purchase price shall be interpolated for exact amounts of change
in cost between the amounts stated in the following schedule.
NET DECREASE PURCHASE PRICE AT
IN COST 5TH ANNIV. >> FIRST SECOND THIRD
------- ------------- ----- ------ -----
-0- $3,055,090 $2,810,990 $2,078,390
$ 75,000 $3,004,208 $2,796,929 $2,078,390
$100,000 $2,977,723 $2,789,515 $2,076,306
$150,000 $2,974,755 $2,754,682 $2,074,609
$200,000 $2,971,785 $2,739,848 $2,071,911
The purchase price in effect at the time of exercise of the option shall be
equitably adjusted by Landlord and Tenant if an expansion or a partial taking of
the Premises has occurred between the execution of this Lease and the exercise
of the option. This option may be exercised by Tenant giving Landlord written
notice of its intention to purchase the Premises at least one hundred
21
eighty (180) days before the applicable Fifth Anniversary together with payment
of Ten Thousand Dollars ($10,000.00) xxxxxxx money, which shall be applied to
the purchase price at closing. From the date of such notice, Tenant shall have
ninety (90) days to conduct such inspections and other matters of due diligence
as it may desire. If Tenant is not satisfied with the results thereof, it must
give Landlord notice within ten (10) days after the ninety (90) day period noted
above that it does not desire to purchase the Premises, and the xxxxxxx money
refunded to Tenant. If Tenant does not give Landlord notice that it does not
desire to pursue the purchase of the Premises, then the purchase and sale shall
be closed on the last day of the then current five-year period for the
applicable purchase price. The Purchase Price shall be paid by cash, certified
check or other immediately available funds at closing, which shall occur in the
offices of Landlord's attorneys in Columbia, South Carolina or at such other
place as Landlord and Tenant may agree upon.
30. RIGHT OF FIRST REFUSAL. Landlord agrees that it will not sell the
Premises during the Term of this Lease to any non-affiliated entity other than
Tenant without first offering to Tenant the right (which Tenant may assign to an
affiliate controlled by or under common control with Tenant) to purchase the
Premises on the same terms as those on which Landlord proposes to sell to such
other non-affiliated entity as set forth in a written bona fide offer from such
entity. Landlord shall give Tenant written notice of any bona fide offer to
purchase received (and any modifications thereof), and Tenant shall have ten
(10) days from receipt of said notice in which to give Landlord written notice
whether it elects to purchase the Premises on the same terms set forth in the
offer, including any modification thereof. If no notice is given by Tenant with
in the time allowed, it shall be conclusively deemed that Tenant elected not to
purchase, and Tenant shall have no further rights with respect to that proposed
sale. If that sale is not
22
consummated, this right of first refusal shall remain in effect with respect to
subsequent offers.
31. SECURITY DEPOSIT. Tenant shall pay to Landlord, at the execution
hereof, a security deposit in the amount of Twenty-seven Thousand Three Hundred
Fifty-four and 17/100 ($27,354.17). Landlord shall hold same in its non-interest
bearing escrow account. If at the expiration of the Term (or any extension
thereof) Tenant vacates the Premises and leaves them in good, broom clean
condition and repair, except for normal and reasonable wear and tear, Landlord
shall refund the said security deposit to Tenant within thirty (30) days of
Tenant vacating the Premises; provided, however, that if at the expiration or
earlier termination of this Lease there remains past due and payable any
arrearage of rent or other sum due hereunder, Landlord may apply the security
deposit toward the payment of same, in addition to exercising its rights under
Section 32 below.
32. ADDITIONAL SECURITY BY LETTER OF CREDIT. Notwithstanding any other
provisions in this lease, as additional security for the faithful performance by
Tenant of its rental payment and other obligations and covenants under this
Lease, Tenant shall within thirty (30) days after the execution of this Lease
cause to be delivered to Landlord an irrevocable letter of credit in favor of
Landlord, from a bank reasonably acceptable to Landlord, on which Landlord shall
be entitled to collect payment of the face amount (as set forth hereinbelow)
upon providing written notice to the issuing bank that Tenant has defaulted in
the performance of an obligation or covenant under this Lease and has failed to
cure same within the period of time allowed by this Lease and that Landlord has
exercised or intends to exercise its rights under Section 15 of this Lease. The
amount collected by Landlord, less any out-of-pocket costs incurred by Landlord
to collect same, shall be credited toward Tenant's liability to Landlord under
Section 15. The
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initial face amount of the letter of credit shall be Two Million Dollars
($2,000,000.00). Tenant shall maintain the letter of credit in force at all
times during the lease term; provided, however, that after such time as Tenant
demonstrates to Landlord by its independently audited consolidated financial
statements, which include an opinion rendered by Tenant's independent certified
public accountants, that it has had net income of Two Million Dollars
($2,000,000.00) or more for two consecutive fiscal years of twelve calendar
months each subsequent to the fiscal year in which this Lease is executed,
Tenant shall no longer be required to renew the letter of credit; and provided,
further, that at such time as the total amount of rent remaining payable to
landlord for the balance of the term is less than Two Million Dollars
($2,000,000.00), if Tenant is still required hereunder to maintain the letter of
credit in force, Tenant may renew the letter of credit annually in a face amount
equal to the total amount of rent remaining payable to Landlord for the balance
of the term at the time of each such renewal.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as
of the day and year first above written.
WITNESSES: SOUTH CAROLINA REAL ESTATE
DEVELOPMENT COMPANY, INC. (SEAL)
/s/ Xxxxx X. Xxxxxx By: /s/ X. X. Xxxxxx
------------------------------ ----------------
X. X. Xxxxxx
/s/ Xxxxxxxx Xxxx President
------------------------------
HOSOKAWA MICRON INTERNATIONAL, INC.
(SEAL)
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx Senior Vice President
------------------------------
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AMENDMENT OF LEASE
------------------
AMENDMENT made the _______ day of _________, 1994 to that certain Lease
dated June 23, 1993 (the "Lease") between SOUTH CAROLINA REAL ESTATE DEVELOPMENT
COMPANY, INC. now known as SCANA DEVELOPMENT CORPORATION as Landlord and
HOSOKAWA MICRON INTERNATIONAL, INC. as Tenant.
WHEREAS the Lease provides in Section 4 for annual rental, which is
subject to adjustment due to changes in the cost of the project which is the
subject of the Lease, as provided in Section 3 of the Lease; and
WHEREAS Tenant requested certain changes in the plans and specifications
of the project which resulted in increased cost to Landlord, for which tenant
elected an increase in annual rental as provided in Section 3 of the Lease, the
increases totaling $269,317.00, as is detailed on Exhibit A hereto; and
WHEREAS Landlord and Tenant desire to amend the Lease to reflect the
increase in annual rental caused by the adjustments referred to above; now,
therefore,
IN CONSIDERATION of the sum of One Dollar ($1.00) and the premises,
Landlord and Tenant agree that the Lease shall be and hereby is amended as
follows:
Section 4 of the Lease is amended by changing subsections A and B to read
as follows:
A. $988.74 per day for the number of days Tenant has taken
possession of the Premises or has opened for business prior to
commencement of the Lease term. If Tenant commences operations in the
Premises during the period of partial occupancy referred to in Section
3(D) above, the Rent due under this subparagraph shall be prorated in the
same proportion as the amount of space occupied bears to the gross area of
the Building.
B. Years One through Fifteen: $360,891.00 per annum, or $30,074.25
per month.
Except as amended above, the Lease shall remain in full force and effect
according to its terms.
HOSOKAWA MICRON SCANA DEVELOPMENT
INTERNATIONAL, INC. CORPORATION (f/k/a South
Carolina Real Estate Development
Company, Inc.)
By: /s/ Xxxxxxx X. Baling By: /s/ X.X. Xxxxxx
------------------------ ----------------------------
Its President Its President
XXXXXXX-XXXXXXXX DIV.
